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Easements – scope of right of way

This case arose out of a dispute between neighbours, but it has implications for the scope of any right of way.

The Brooks family and the Young family owned adjacent terraced houses. The Youngs had the benefit of a right of way from their back garden along a path at the rear of the Brooks' house. The path then ran down the side of the Brooks' house to reach the street. Both houses had access via their front doors onto the street in the usual way.

The Brooks complained that the Youngs' use of the right of way was excessive. The dispute centred around the wording of the easement, which was "for all proper purposes connected with the reasonable enjoyment of the property". The Brooks argued that these words limited the right of way, so that the Youngs could only use the path at the rear when it was impractical to go in and out via their front door.

The County Court found in favour of the Brooks' construction of the right of way. However, this was overturned by the Court of Appeal.

When construing an easement, the court will have regard to the intention of the original parties, which has to be determined from the words of the grant in the light of the surrounding circumstances. Both houses had been sold off under the right-to-buy scheme by the local authority, which had therefore granted the original easement. The Brooks produced a letter from the local authority which supported their interpretation. The court held that this evidence of the authority's actual intentions would only be admissible in a claim for rectification – no such claim was made.

The court found that there was nothing to suggest that the Youngs' enjoyment of their house was unreasonable, for the purposes of the wording of the easement. Their various uses of the path, including as a means of access for their visitors, were perfectly proper purposes connected with the occupation of their house. To read the grant in the way the Brooks were suggesting would mean substituting "all necessary purposes" for "all proper purposes".

Things to consider

When granting easements, careful thought should be given as to the precise scope of the rights required. Standard forms of wording are commonly used, which may need to be cut down to suit the circumstances of a particular case. In the May edition of Property Update we reviewed the case of Hunte v E Bottomley & Sons, where it was held that a landlord was not entitled to re-route a tenant's right of way over the roads on the estate.

By definition, an easement will involve some impingement on the grantor's enjoyment of his land. If it is intended that a means of access should only be used where there is no viable alternative, this must be clearly spelled out.

In this case, the court was careful to point out that if the Youngs had been using their house for some improper or unreasonable purpose, then the right of way would not extend to that purpose. The court did not give examples, but it would seem to follow that if, say, business use was prohibited at the property, then use of the path by clients, or for deliveries to the business, would not be within the scope of the easement. On the facts of this case, the Youngs' use of the right of way when they could just as easily have used the front door instead may have been inconsiderate, but it was not unlawful.